55 Misc. 3d 194
Tompkins Cty Ct.2016Background
- July 21, 2014: respondent in DeWitt Park smelled strongly of burnt marihuana while on patrol; officers approached and observed respondent attempt to conceal a tin with a sweatshirt and put a cell phone under a drainpipe.
- Officers asked for ID; respondent initially resisted, then provided ID but would not let it be taken; officers ran a records check.
- Officers announced they would search respondent, asked him to turn and be handcuffed; respondent refused and a physical struggle ensued during which officers used knee strikes and respondent bent an officer’s finger.
- After handcuffing, officers searched respondent and area, recovering a marihuana pipe, a tin with marihuana, and a cell phone; respondent was arrested for obstructing governmental administration, resisting arrest, and unlawful possession of marihuana (violation).
- Lower court granted suppression and dismissed charges, holding the forcible stop/handcuffing/search lacked the reasonable suspicion of a misdemeanor or felony required for a De Bour level-three stop. The People appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether odor of burnt marihuana alone justifies a De Bour level-three forcible stop and detention | Odor alone provides reasonable suspicion respondent possessed marihuana and thus justifies forcible stop | Odor alone supports at most an investigatory (level one/two) encounter; CPL 140.50 requires suspicion of a felony or misdemeanor for a forcible stop | Held: Odor alone does not justify a forcible stop; insufficient to reach level three |
| Whether reasonable suspicion of only a noncriminal violation supports a forcible stop | Forcible stop may be justified by suspicion of violation-level offenses | CPL 140.50(1) expressly requires suspicion of a felony or misdemeanor; legislature omitted violations | Held: A suspicion limited to violations does not meet level-three statutory requirement |
| Whether odor plus furtive conduct (attempt to conceal tin, put phone under pipe) elevated suspicion to level three | Odor combined with furtive acts gave reasonable suspicion of criminal activity justifying forcible stop | The combination warranted only a limited informational inquiry (level one/two); did not confirm a misdemeanor in officers’ presence | Held: Odor plus furtive conduct justified only a bare informational inquiry, not forcible seizure |
| Whether officers reasonably frisked/searched for safety or evidence after handcuffing | Officers claim safety check and search for marihuana justified handcuffing and search | Respondent: forcible handcuffing/search occurred before reasonable suspicion of a crime or safety threat was developed | Held: Officers lacked reasonable suspicion of a misdemeanor/felony or present safety threat to justify forcible handcuffing and search; suppression proper |
Key Cases Cited
- People v De Bour, 40 NY2d 210 (1976) (announces four-level framework for police-citizen encounters and requires reasonable suspicion of a felony or misdemeanor for a forcible stop)
- People v Moore, 6 NY3d 496 (2006) (reiterates De Bour levels and standards for stops and frisks)
- People v Roque, 99 NY2d 50 (2002) (context for applying De Bour principles to specific factual stops)
- People v Lightfoot, 124 A.D.3d 802 (2015) (Second Dept decision where forcible detention was upheld on facts involving suspected trespass and other indicia of criminality)
- People v Schobert, 93 A.D.2d 949 (1983) (odor plus observation of a lit item passed among persons can confirm a misdemeanor offense and justify a forcible stop only when it confirms the offense in officers’ presence)